B-84520, JUNE 6, 1949, 28 COMP. GEN. 690

B-84520, JUNE 6, 1949, 28 COMP. GEN. 690

FOREIGN AREA ALLOWANCES TO CIVILIAN EMPLOYEES EMPLOYEES STATIONED IN FOREIGN AREAS WHO ARE SUBJECT TO SECTION 204 OF THE INDEPENDENT OFFICES APPROPRIATION ACT, 1949, AUTHORIZING THE PAYMENT OF LIVING QUARTERS ALLOWANCES AND COST OF LIVING ALLOWANCES AS PROVIDED BY THE ACT OF JUNE 26, 1930, AND SECTION 901 (2) OF THE FOREIGN SERVICE ACT OF 1946, RESPECTIVELY, ARE NOT ENTITLED TO A TEMPORARY LODGING ALLOWANCE, AS DEFINED IN SECTION 2 OF THE STANDARDIZED GOVERNMENT CIVILIAN ALLOWANCE REGULATIONS, WHICH WAS SPECIFICALLY AUTHORIZED TO BE PAID ONLY TO EMPLOYEES OF THE FOREIGN SERVICE BY SECTION 901 (1) OF THE 1946 ACT. EMPLOYEES STATIONED IN FOREIGN AREAS WHO ARE SUBJECT TO SECTION 204 OF THE INDEPENDENT OFFICES APPROPRIATION ACT, 1949, PROVIDING FOR THE PAYMENT OF LIVING QUARTERS ALLOWANCES AND COST OF LIVING ALLOWANCES AUTHORIZED BY THE ACT OF JUNE 26, 1930, AND SECTION 901 (2) OF THE FOREIGN SERVICE ACT OF 1946, RESPECTIVELY, MAY BE GRANTED QUARTERS, POST, SPECIAL POST, TRANSFER, AND SEPARATION ALLOWANCES WHICH ARE SPECIFICALLY AUTHORIZED BY THE 1930 ACT AND SAID SECTION 901 (2), PROVIDED THE FOREIGN POSTS OF DUTY ACTUALLY REPRESENT THE EMPLOYEES' PERMANENT STATIONS DURING THE PERIOD OF THEIR ASSIGNMENT FOR SEASONAL PERIODS OF FROM TWO TO SIX MONTHS.

ACTING COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE TREASURY, JUNE 6, 1949:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 11, 1949, REQUESTING A DECISION AS TO THE APPLICATION OF THE VARIOUS ALLOWANCES AUTHORIZED UNDER THE STANDARDIZED GOVERNMENT CIVILIAN ALLOWANCE REGULATIONS TO EMPLOYEES OF THE BUREAU OF CUSTOMS STATIONED IN FOREIGN COUNTRIES. YOUR QUESTION RELATES PARTICULARLY TO THE TEMPORARY LODGING ALLOWANCES PROVIDED FOR IN SECTION 2 OF THE SAID REGULATIONS, AND YOU DOUBT WHETHER SUCH ALLOWANCE IS APPLICABLE TO CUSTOMS EMPLOYEES UNDER THE BASIC AUTHORITY CONTAINED IN SECTION 204 OF THE INDEPENDENT OFFICES APPROPRIATION ACT, 1949 (62 STAT. 176, 194).

ALTHOUGH IT IS STATED TO BE THE VIEW OF YOUR DEPARTMENT THAT THE SAID SECTION 204 CONSTITUTES AMPLE AUTHORITY FOR GRANTING THE OTHER ALLOWANCES- -- QUARTERS, POST, SPECIAL POST, TRANSFER, AND SEPARATION--- AS PROVIDED IN SECTIONS 3,4,5,6, AND 7, RESPECTIVELY, OF THE ALLOWANCE REGULATIONS, DECISION IS REQUESTED, GENERALLY, AS TO THE APPLICABILITY OF THOSE SECTIONS TO CUSTOMS EMPLOYEES AND SPECIFICALLY AS TO WHICH OF THE SAID ALLOWANCES, IF ANY, MAY BE GRANTED CUSTOMS OFFICIALS AND EMPLOYEES STATIONED IN CANADA FOR SEASONAL PERIODS OF FROM TWO TO SIX MONTHS.

AS INDICATED IN SECTION 2 (C) OF ALLOWANCE CIRCULAR NO. 1, STANDARDIZED GOVERNMENT CIVILIAN ALLOWANCE REGULATIONS, THE NEW ALLOWANCES PREVIOUSLY AVAILABLE ONLY TO MEMBERS OF THE FOREIGN SERVICE NOW ARE AVAILABLE TO ALL CIVILIAN EMPLOYEES "WHEN AUTHORIZED BY LAW FOR THE AGENCY CONCERNED.' THE AUTHORITY TO PAY COST OF LIVING AND QUARTERS ALLOWANCES TO CUSTOMS EMPLOYEES IN CONTAINED IN SECTION 204 OF THE INDEPENDENT OFFICES APPROPRIATION ACT, 1949, SUPRA. THAT SECTION MAKES FUNDS AVAILABLE FOR THE PAYMENT OF LIVING QUARTERS ALLOWANCE IN ACCORDANCE WITH THE ACT OF JUNE 26, 1930, 46 STAT. 818 (4 U.S.C. 118 (A) (, AND REGULATIONS PRESCRIBED THEREUNDER, AND COST OF LIVING ALLOWANCE SIMILAR TO THOSE AUTHORIZED BY SECTION 901 (2) OF THE FOREIGN SERVICE ACT OF 1946, 60 STAT. 1026. THEREFORE, SINCE THE ALLOWANCES PRESCRIBED BY THE SAID STANDARDIZED REGULATIONS ARE AVAILABLE TO AN EMPLOYEE ONLY TO THE EXTENT THAT SUCH ALLOWANCES ARE AUTHORIZED BY LAW FOR THE AGENCY CONCERNED, IT NECESSARILY FOLLOWS THAT CUSTOMS EMPLOYEES MAY NOT BE GRANTED ANY OF THE PRESCRIBED ALLOWANCES WHICH ARE NOT AUTHORIZED BY THE ACT OF JUNE 26, 1930, OR SECTION 901 (2) OF THE FOREIGN SERVICE ACT OF 1946, SUPRA.

A TEMPORARY LODGING ALLOWANCE IS SPECIFICALLY AUTHORIZED TO BE PAID TO EMPLOYEES OF THE FOREIGN SERVICE BY SECTION 901 (1) OF THE FOREIGN SERVICE ACT, 60 STAT. 1025, AND NO REFERENCE TO THAT SECTION OR TO PROVISIONS SIMILAR TO THOSE CONTAINED THEREIN IS INCLUDED IN THE LAW FROM WHICH THE BUREAU OF CUSTOMS DERIVES ITS AUTHORITY TO PAY ALLOWANCES TO EMPLOYEES STATIONED IN FOREIGN COUNTRIES. MOREOVER, UNDER THE PRESENT REGULATIONS RELATING TO THE COMPUTATION OF THE SAID TEMPORARY LODGING ALLOWANCE, IT APPEARS THAT THE EXTENSION OF SUCH BENEFIT TO EMPLOYEES OTHER THAN THOSE OF THE FOREIGN SERVICE OF THE STATE DEPARTMENT WAS NEITHER CONTEMPLATED NOR PROVIDED FOR. ACCORDINGLY, THERE IS REQUIRED THE CONCLUSION THAT A TEMPORARY LODGING ALLOWANCE, AS DEFINED IN SECTION 2 OF THE STANDARDIZED REGULATIONS, LEGALLY MAY NOT BE GRANTED TO AN EMPLOYEE OF THE BUREAU OF CUSTOMS OR TO ANY OTHER EMPLOYEES WHO ARE SUBJECT TO THE PROVISIONS OF SECTION 204 OF THE INDEPENDENT OFFICES APPROPRIATION ACT, 1949.

THE OTHER ALLOWANCES REFERRED TO IN YOUR LETTER--- QUARTERS, POST, SPECIAL POST, TRANSFER, AND SEPARATION--- ARE SPECIFICALLY AUTHORIZED BY THE 1930 ACT AND SECTION 901 (2) OF THE FOREIGN SERVICE ACT, SUPRA. THUS, SUCH PROVISIONS HAVING BEEN INCORPORATED IN SECTION 204, THE ALLOWANCES AUTHORIZED THEREBY MAY BE GRANTED TO EMPLOYEES OF THE BUREAU OF CUSTOMS IN ACCORDANCE WITH THE APPLICABLE PROVISIONS OF THE REGULATIONS.

A NECESSARY PREREQUISITE TO THE GRANTING OF ANY OF THE REFERRED-TO ALLOWANCES IS THAT THE EMPLOYEE CONCERNED BE PERMANENTLY ASSIGNED TO A FOREIGN DUTY POST. THEREFORE, IN THE ABSENCE OF A FACTUAL STATEMENT FROM WHICH A DETERMINATION IN THAT RESPECT MAY BE MADE AS TO CUSTOMS EMPLOYEES STATIONED IN CANADA FOR SEASONAL PERIODS, A DEFINITE ANSWER CANNOT BE MADE TO THE SPECIFIC QUESTION ( NO. 2) PRESENTED IN YOUR LETTER. IN THAT CONNECTION, HOWEVER, IT MAY BE STATED THAT IF THE CANADIAN POSTS OF DUTY ACTUALLY REPRESENT THE EMPLOYEES' PERMANENT STATIONS DURING THE PERIOD OF THEIR ASSIGNMENT, THEY MAY BE GRANTED QUARTERS, POST, SPECIAL POST, TRANSFER, AND SEPARATION ALLOWANCES TO THE SAME EXTENT AS AUTHORIZED FOR ANY OTHER EMPLOYEE OF YOUR DEPARTMENT STATIONED IN A FOREIGN COUNTRY. THE OTHER HAND, IF THE DUTY STATION IS TEMPORARY, SUCH AS WOULD PERMIT THE PAYMENT TO THEM OF PER DIEM IN LIEU OF SUBSISTENCE THEREAT, THE ALLOWANCES MAY NOT BE GRANTED.